Privacy watchdog: End NSA phone program

The government’s independent privacy watchdog on Thursday recommended an end to the U.S. program that collects and analyzes billions of American phone call records, arguing it lacks legal basis and has provided little value in terrorism investigations.

A majority of the so-called Privacy and Civil Liberties Oversight Board said the program, which is carried out under Section 215 of the PATRIOT Act, also threatens Americans’ privacy and could create a chilling effect on free speech. The panel plans to unveil its full conclusions in a report later Thursday.

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PCLOB’s recommendation adds to pressure on President Barack Obama to make changes to the National Security Agency’s phone records surveillance, one of the more controversial NSA practices exposed by Edward Snowden’s leaks.

Obama said in a speech last week that the program should continue, but with the data held by the private sector and not the government. He suggested that telecommunications companies like AT&T and Verizon or a new third party could be the steward of the records, building off an idea proposed by his handpicked surveillance task force.

In its report, however, the privacy board cast doubt on the idea that the PATRIOT Act can be used to authorize the government’s collection of bulk call records in the first place, and it rejected the idea that private companies act as the keepers of such data. The board said its examination had not “identified a single instance involving a threat to the United States in which the program made a concrete difference in the outcome of a counterterrorism investigation.” And it raised privacy concerns over the phone data collection, saying it gives a “window into the caller’s private affairs.”

The five-member board’s conclusion was not unanimous on the phone records. Chairman David Medine and members Patricia Wald and James Dempsey backed the recommendation to end the program, while members Rachel Brand and Elisebeth Collins Cook dissented.

While Brand and Cook agreed there needed to be some major changes to Section 215 to better safeguard Americans’ privacy, they argued that the phone data program didn’t need to be dismantled. And both said it wasn’t the board’s place to analyze the legal underpinnings of the program, which they said had been reauthorized by multiple judges on the Foreign Intelligence Surveillance Court.

The board’s report is already adding more fuel to the surveillance debate on Capitol Hill.

“The recommendations of the Privacy and Civil Liberties Oversight Board add to the growing chorus calling for an end to the government’s dragnet collection of Americans’ phone records,” said Sen. Patrick Leahy (D-Vt.), leader of his chamber’s Judiciary Committee and a staunch advocate for ending bulk collection.

“Not only does the report raise serious questions about the statutory and constitutional foundation of the program,” added Rep. Adam Schiff (D-Calif.) in his own statement, “but it once again confirms both the limited national security value of the program and the very considerable risk to the privacy of the American people.”

But House Intelligence Committee Chairman Mike Rogers (R-Mich.), who has defended the government’s phone records surveillance, said in a statement Thursday he is “disappointed that three members of the board decided to step well beyond their policy and oversight role and conducted a legal review of a program that has been thoroughly reviewed.”

“Further, I don’t believe the board should go outside its expertise to opine on the effectiveness of counterterrorism programs,” Rogers added. “As those of us with law enforcement experience know, successful investigations use all available tools — there often is no ‘silver bullet’ that alone thwarts a plot.”

For now, PCLOB urged the Obama administration to adopt new privacy safeguards for the phone program “immediately” and said the White House could accomplish such changes without Congress.

The board endorsed limitations on the amount of time phone records are held, from five years to three years. It backed a limit on the number of contacts beyond the initial suspect that NSA analysts can view. And it suggested the so-called FISA Court, which approves surveillance requests, should review NSA requests to search the database for numbers that might be associated with terrorism.

The panel proposed other reforms, endorsing the idea of “special advocates” on the government’s secret surveillance court and calling on the Obama administration to work with technology companies to let them publish more details about the surveillance requests they receive. The president signaled general support for some of these recommendations during his speech last week.

For PCLOB, the report Thursday is something of a watershed moment. The board, reconstituted in 2007 amid questions about its independence, sat dormant for years — and it took Obama years to nominate a full slate of candidates, four of whom the Senate confirmed only in 2012.

The board’s chairman, Medine, was approved by the Senate last May, just days before the first stories based on Snowden’s leaks appeared.

CORRECTION: An earlier version of this story misstated the name of one of the PCLOB members. It is James Dempsey.